Explaining the Emergence of Human Rights Regimes: Liberal Democracy and Political Uncertainty in Postwar Europe Andrew Moravcsik Working Paper Series 98-17 December 1998 Weatherhead Center for International Affairs Harvard University Abstract Formal international human rights regimes differ from most other forms of international cooperation in that their primary purpose is to hold governments accountable to their own citizens for purely domestic activities. Many establish international committees, courts, and procedures for this purpose. Why would governments establish an arrangement that invades domestic sovereignty in this way? Current scholarship suggests two explanations. A realist view asserts that the most powerful democracies seek to externalize their values, coercing or enticing weaker and less democratic governments to accept human rights regimes. A ideational view argues that the most established democracies externalize their values, setting in motion a transnational process of diffusion and persuasion that socializes less democratic governments to accept such regimes. These are often combined: The most powerful and persuasive democracies coerce and cajole less democratic states into accepting international obligations. I propose a third, institutional liberal view. Drawing on theories of administration and adjudication developed to explain rational delegation in domestic politics, I maintain that governments delegate for a self-interested reason, namely to combat future domestic political uncertainty. It is thus not the most powerful or persuasive democracies, but weakly established democracies that favor enforceable (as opposed to merely rhetorical) human rights obligations, because such commitments help lock in democratic governance against non-democratic domestic opposition. I test these three theories by examining the founding of the European Convention on Human Rights-considered the most successful system of formal human rights guarantees in the world today. In accordance with the institutional liberal view, I find that the strongest postwar advocates of binding human rights guarantees were recently reestablished democracies, while more established democracies like Britain, Sweden, the Netherlands and Denmark uniformly sided with transitional regimes like Greece and Turkey in opposition to binding guarantees. The historical record of negotiating tactics and domestic deliberation offers further support. The general claim that governments bind themselves to Explaining the Emergence of Human Rights Regimes file:///M|/WEB/cfia/cfiapubs/pdfs/moa02.html (1 of 35) [11/30/2000 11:56:36 AM]
Explaining the Emergence of Human Rights Regimes: Liberal Democracy and Political Uncertainty in Postwar Europe
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Explaining the Emergence of Human Rights RegimesExplaining the Emergence of Human Rights Regimes: Liberal Democracy and Political Uncertainty in Postwar Europe
Andrew Moravcsik
Weatherhead Center for International Affairs Harvard University
Abstract
Formal international human rights regimes differ from most other forms of international cooperation in that their primary purpose is to hold governments accountable to their own citizens for purely domestic activities. Many establish international committees, courts, and procedures for this purpose. Why would governments establish an arrangement that invades domestic sovereignty in this way? Current scholarship suggests two explanations. A realist view asserts that the most powerful democracies seek to externalize their values, coercing or enticing weaker and less democratic governments to accept human rights regimes. A ideational view argues that the most established democracies externalize their values, setting in motion a transnational process of diffusion and persuasion that socializes less democratic governments to accept such regimes. These are often combined:
The most powerful and persuasive democracies coerce and cajole less democratic states into accepting international obligations. I propose a third, institutional liberal view. Drawing on theories of administration and adjudication developed to explain rational delegation in domestic politics, I maintain that governments delegate for a self-interested reason, namely to combat future domestic political uncertainty. It is thus not the most powerful or persuasive democracies, but weakly established democracies that favor enforceable (as opposed to merely rhetorical) human rights obligations, because such commitments help lock in democratic governance against non-democratic domestic opposition. I test these three theories by examining the founding of the European Convention on Human Rights-considered the most successful system of formal human rights guarantees in the world today. In accordance with the institutional liberal view, I find that the strongest postwar advocates of binding human rights guarantees were recently reestablished democracies, while more established democracies like Britain, Sweden, the Netherlands and Denmark uniformly sided with transitional regimes like Greece and Turkey in opposition to binding guarantees. The historical record of negotiating tactics and domestic deliberation offers further support. The general claim that governments bind themselves to
Explaining the Emergence of Human Rights Regimes
file:///M|/WEB/cfia/cfiapubs/pdfs/moa02.html (1 of 35) [11/30/2000 11:56:36 AM]
The 50 th anniversary of the United Nations’ Universal Declaration on Human Rights marks an appropriate moment to reconsider the reasons why governments construct formally binding international regimes to adjudicate and enforce human rights. 1 Such regimes differ from most other forms of
international cooperation—and from purely rhetorical human rights declarations like the Universal Declaration itself—in that their primary purpose is to hold governments accountable before international institutions for their purely domestic activities. Such regimes do little to structure transactions among different governments. While some formally empower governments to challenge one another, this almost never occurs. It is a commonplace of international legal scholarship that the distinctiveness of such regimes lies instead in the empowerment of individual citizens to bring suit to challenge the domestic activities of their own government . The independent courts and commissions attached to such regimes are often empowered to nullify domestic legislation—even if enacted through fully democratic procedures. In this regard, such regimes pose a fundamental challenge not just to the Westphalian ideal of state sovereignty that underlies both realist international relations theory and classical international law, but also, though this is far less often noted, to liberal notions of democratic legitimacy and self-determination. For this reason, their postwar emergence, beginning with the Universal Declaration, has been called the most “radical development in the whole history of international law.” 2
There is a real theoretical puzzle here: Why would any government, democratic or dictatorial, favor establishment of an independent international authority, the sole purpose of which is to constrain its domestic sovereignty in such an unprecedentedly invasive and overtly non-democratic manner? Nearly all scholars who seek to answer this question theoretically, and thereby to explain human rights regimes, advance either a realist or an ideational explanation—or some combination of both.
Those who argue in a broadly realist vein maintain that normative coherence is a function of the concentration of interstate power. Powerful states, some of which happen to be democratic, impose human rights values on weaker ones. Those who argue in a more ideational vein (variously identified as liberal idealists or liberal constructivists) maintain that human rights regimes are a reflection of altruistic ideals. Democratic governments, or transnationally active members of democratic civil societies, are the strongest supporters of human rights regimes. They then externalize their ideology, persuading and encouraging other governments to implement human rights norms. Many scholars espouse both positions at once, arguing that powerful democracies coerce and induce others to respect human rights norms for idealist reasons.
Neither explanation, I argue below, captures the primary motivation behind the construction of formal human rights regimes. Existing theoretical claims rest on a near-total absence of empirical analysis. Neither historians nor political scientists have gone beyond published secondary sources in seeking to
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explain the motivations of governments to create and join such regimes. The explanations above are no more than speculation based on casual observation of such regimes. Yet even casual observation is enough to suggest that neither explanation is correct. Even the secondary source record makes clear that the primary proponents of binding international human rights commitments in postwar Europe (as well as other regions) were neither the most democratic nor the most powerful states. Indeed, strong democracies tend to ally with dictatorships in opposition to binding human rights protection —a tendency very seldom noted by scholars and for which realists and idealist have no explanation. The primary proponents of formal human rights protection are instead the governments of weak and newly established democracies.
This curious pattern is explicable, I argue in the second section of this essay, only if we adopt a different theoretical starting point—that of domestic self-interest rather than realist power politics or exceptional transnational idealism. It is an act of political delegation akin to the establishment of domestic courts and administrative agencies as understood using theories of delegation drawn from the sub-disciplines of American politics and comparative public policy.
From this perspective—we might term it an institutional liberal or “two-level” perspective—delegation is a tactic to insulate the policies favored by a current government against future domestic political uncertainty. It “locks in” democratic norms against future threats from non-democratic opponents by placing the definition, interpretation, and adjudication of fundamental human rights claims in the hands of an independent international authority. Any violation of human rights is thereby rendered a more salient and symbolic event at home and abroad, against which governments hope to marshal greater domestic and perhaps also international support. The cost of such an arrangement is, however, that a measure of power to nullify or reinterpret individual domestic laws is thereby placed in the hands of the international body likely to render decisions that seek to bring all governments under common principles, rather than accommodating specific national particularities, compromises, exceptions, or political circumstances. The strongest support for legally binding guarantees will come instead from weak democracies, for which the need to stabilize the democratic system outweighs limitations on sovereign control over individual legislation.
In the third section of the essay, I test the realist, ideational, and institutional liberal explanations using historical data drawn from a primary source-based investigation of the origins of what is widely accepted to be the most effective of enforceable international human rights regimes in the world today—and for some decades, the only effective one—the European Convention on Human Rights (ECHR) system under the auspices of the Council of Europe, based in Strasbourg, France. Over the last half century, commentators agree, the European Convention system has established “effective supranational adjudication” in Europe. 3 The European Court has rightly proclaimed the Convention “a constitutional
document of European public order.” 4 Systematic comparison of national positions and primary-source
evidence concerning negotiating tactics and domestic political decision-making strongly confirm the institutional liberal explanation.
The notion that states construct international institutions in order to reduce domestic political uncertainty, I conclude in the fourth and final section, can be usefully extended to other areas of world politics, including other human rights regimes, monetary policy coordination, and trade liberalization.
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I. Existing Theories of International Human Rights Cooperation
Unlike international regimes governing international trade, environmental externalities, and international security, human rights enforcement and adjudication regimes do not seek to regulate ongoing international transactions. Instead they constrain governments solely in interaction with their own citizens or residents. 5 Why should governments coordinate their domestic policies?
Existing scholarship seeking to explain why governments accept the constraints on domestic sovereignty imposed by formal international human rights regimes has therefore focused on either power or altruism. These two options define distinctive realist and ideational explanations of human rights regimes, which, despite being viewed historically as antitheses, tend to converge toward similar empirical predictions. These theories are discussed below; their predictions are summarized on the next page on Table One.
To offer a brief preview of our findings, we see that even at the social conferences, sovereignty issues continue to shape NGO-state relations. As expected, sovereignty debates do indeed center around economic and cultural referents, in the absence of much debate about traditional security issues at these conferences. NGOs at the UN conferences of the 1990s exhibit an expanded global role, possessing more potential for independent agency and dialogue with states than at any time before. However, NGOs’ agency is also shaped by the procedures and agenda that remain in the hands of states. We also find that money does not “change everything”; on issues of foreign aid discussed at the conferences, recipient states were not willing to have international agreements dictate the percentage of their budget dedicated to social programs. Few donor states were willing to bow to similar recommendations for the percentage of aid they should give for social needs.
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A. Interstate Power and Human Rights: “For countries at the top, this is predictable”
One distinctive set of theories of international cooperation focus on the distribution of interstate bargaining power. Let us call these “realist” theories. In this view, governments accept formal human rights enforcement regimes because they are compelled to do so by great powers, who externalize their ideology—a view shared by the theory of hegemonic stability and conventional realist bargaining theory. 6 The causal link between the concentration of power in a hegemon or a few great powers, on the
one hand, and international cooperation, on the other, runs through the willingness of one or a few great powers to coerce or induce recalcitrant states to accept, adjust to, and comply with international obligations. 7 The major constraint on cooperation is the cost of coercion or inducement; only hegemons
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or small (“k”) groups among great powers—or, at least, democratic great powers—have the concentrated power to do so. The greater the concentration of relative power capabilities, the greater the pressure on recalcitrant governments and the more likely a regime is to form and prosper.
Such arguments are often invoked to explain human rights regimes. E.H. Carr, Hans Morgenthau and other classical realists argue that governments employ such liberal ideology as justifications for geopolitical and economic interests. 8 Stephen Krasner has maintained that human rights regimes almost
invariably reflect the interests, power, and intervention of great powers. 9 Kenneth Waltz presents the
theoretical claim in a general form—powerful nations predictably seek to impose their (arbitrary) views on other nations—then applies it to the postwar U.S.:
Like some earlier great powers, we [the U.S.] can identify the presumed duty of the rich and powerful to help others with our own beliefs about what a better world would look like. England claimed to bear the white man’s burden; France had its mission civilisatrice ....For countries at the top, this is predictable behavior. 10
Such efforts are constrained by the willingness and ability of great powers to expend resources for this purpose. Even John Ruggie, a theorist who generally stresses institutional and ideational factors, predicts that human rights regimes are likely to be weaker than nuclear non-proliferation regimes, because the former are of less concern to the core superpower security interests. 11 Jack Donnelly writes of the
Inter-American Convention on Human Rights:
Much of the explanation [for] the Inter-American human rights regime...lies in power, particularly the dominant power of the United States....[It] is probably best understood in these terms. The United States, for whatever reasons, decided that a regional regime with relatively strong monitoring powers was desirable, then exercised its hegemonic power to ensure its creation and support its operation. 12
Others link acceptance of human rights norms to pressures by international financial organizations (the World Bank) or Western donors of development and military aid. 13
Realist theory is often invoked as an explanation for the emergence of the European, UN, and American human rights regimes in the immediate post-World War II period. It was the dawning of an “American century,” and the West was embroiled in a bipolar conflict with the Soviet Union. The U.S. and UK could be expected to use their power to promote human rights, either for reasons of pride or to provide ideological legitimacy for the Western unity against the Soviets.
B. Liberal Idealism: “The Inescapable Ideological Appeal of Human Rights”
Ideational explanations look to the altruistic pursuit of principled ideas. Governments accept binding international human rights norms, in this view, because they are swayed by their obvious ideological and normative appeal. “The seemingly inescapable ideological appeal of human rights in the postwar world,” writes Donnelly, who espouses a wide range of explanations for human rights regimes, “is an important element in the rise of international human rights regimes....True hegemony is often based on ideological
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‘power.’” 14
Whence the ideological appeal of human rights? Psychological, cultural, historical, and domestic political explanations have been proposed. Some look to moral psychology. Human rights ideals such as the right to life and freedom from torture are said to be intuitively attractive to human beings and are therefore recognized cross-culturally as valid. 15 Others look to cultural homogeneity. States “within the
same geographical region, sharing a common history and cultural tradition,” it is argued, are more likely to agree on and enforce common human rights provisions—a characteristic often said to distinguish the European and American regions, which share distinctive approaches to human rights “nurtured by a long tradition of common history, religion, culture, and human values,” as against the global UN regime. 16
Still others attribute the appeal of human rights to salient historical events, in this case the wave of moral revulsion that followed the experience of Nazi atrocities during World War II. The formation of the European Convention, it has been argued, was “a direct consequence of the Nuremberg Tribunal.” 17
A final ideational approach links support for international human rights protection to domestic democratization and commitment to the “rule of law.” 18 This viewpoint has deeper roots in liberal IR
theory, extending beyond human rights policy: Thomas Risse has termed this approach “liberal constructivism” and others term it “ideational liberalism.” 19 In this view, democratic governments seek
to extend their domestic values abroad; the more democratic they are, the more likely they are to do so. Regime theorists Charles and Clifford Kupchan conjecture that “states willing to submit to the rule of law and civil society are more likely to submit to their analogues internationally.”20 International legal
scholar Thomas Frank asserts that compliance with international law is a function of normative acceptance of international rules, which in turn reflects their universal form and consistency with domestic norms, as well as the legitimacy of the process that promulgated them. 21 Kathryn Sikkink links
what appears to be the particularly enthusiastic support of Scandinavian governments for European human rights enforcement to their domestic democratic and social democratic values. 22
What all such arguments share at the level of fundamental theory is a commitment to the transformative power of normative discourse and ideals. Ideational theorists insist that the source of international cooperation lies in the persuasive power of an underlying normative belief concerning the value of human rights. Conversely such theorists reject explicitly the possibility that governments might support human rights regimes for self-interested reasons, for example to respond to a pragmatic need for domestic institutional checks and balances or to prevent warfare by buttressing the “democratic peace.” 23 The most fundamental motive force behind human rights regimes is not rational adaptation,
but transnational socialization—the “logic of appropriateness.” 24
Ideational explanations lay particular emphasis on the mechanism of domestic and transnational public opinion and “principled” interest groups (non-governmental organizations or NGOs). 25 Human rights
activism emanates from long-established and domestically generous democracies—say the United States in the UN and the Scandinavians in Europe. Domestic publics and interest groups convince their governments to create regimes and press other states to commit to and comply with them, establish transnational networks, epistemic communities, and global discourses of human rights, which in turn mobilize domestic and transnational civil society and socialize foreign leaders. 26
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Like realism, ideational theory offers a prima facie plausible explanation for the timing of the emergence of human rights regimes in the immediate post-World War II period. To be sure, appeals to psychology or deep culture manifestly fail to do this; at most they help explain why the defense of human rights might be fertile ground for transnational mobilization and persuasion. Yet the post-war period did immediately follow a salient historical event—the Nazi horrors—and raised the specter of Stalinism, and it was a period in which strong democracies like the U.S. and UK emerged as global leaders. There was much idealistic rhetoric and some interest group and partisan mobilization, particularly connected with the promulgation of human rights declarations like the UN Universal Declaration.
C. The “New Orthodoxy”: A Curious Convergence of Realism and Idealism
The study of human rights makes unlikely bedfellows. While in principle the realist and ideational theories may seem quite different, in practice they tend to converge. In explaining human rights regimes, few realists utterly forsake idealism and few idealists utterly forsake realism. Instead, there has been a widespread acceptance of a uneasy synthesis of the two.
The realists cited above do not argue that human rights norms are simply propagandistic justifications for the pursuit of national security interests. 27 Instead, they concede that the underlying preferences of the
hegemon concerning human rights are independent of its power position: each great power seeks to extend idiosyncratic domestic views or to promote the form of government that is likely to encourage others to ally with it. Underlying state interests are defined domestically, but countries then pursue them by exploiting their relative material capabilities or international institutions. What makes such an argument realist, in this case, is that a different hegemon or great power might promote some values with equal effectiveness; what makes it ideational or liberal constructivist is that domestic societal values determine what values are chosen. 28
Similarly, few idealists actually believe that the use of force or domestic political calculation is irrelevant. Socialization (i.e. transnational education, imitation, and fundamental normative persuasion) is rarely treated as the sole (or even the primary) mechanism that induces governments to accept formal human rights guarantees. There are those, to be sure, who argue that commitments to fundamental human rights are spread by governments imitating one another—a pure “logic of adaptation.” 29 Yet most
idealists…
Andrew Moravcsik
Weatherhead Center for International Affairs Harvard University
Abstract
Formal international human rights regimes differ from most other forms of international cooperation in that their primary purpose is to hold governments accountable to their own citizens for purely domestic activities. Many establish international committees, courts, and procedures for this purpose. Why would governments establish an arrangement that invades domestic sovereignty in this way? Current scholarship suggests two explanations. A realist view asserts that the most powerful democracies seek to externalize their values, coercing or enticing weaker and less democratic governments to accept human rights regimes. A ideational view argues that the most established democracies externalize their values, setting in motion a transnational process of diffusion and persuasion that socializes less democratic governments to accept such regimes. These are often combined:
The most powerful and persuasive democracies coerce and cajole less democratic states into accepting international obligations. I propose a third, institutional liberal view. Drawing on theories of administration and adjudication developed to explain rational delegation in domestic politics, I maintain that governments delegate for a self-interested reason, namely to combat future domestic political uncertainty. It is thus not the most powerful or persuasive democracies, but weakly established democracies that favor enforceable (as opposed to merely rhetorical) human rights obligations, because such commitments help lock in democratic governance against non-democratic domestic opposition. I test these three theories by examining the founding of the European Convention on Human Rights-considered the most successful system of formal human rights guarantees in the world today. In accordance with the institutional liberal view, I find that the strongest postwar advocates of binding human rights guarantees were recently reestablished democracies, while more established democracies like Britain, Sweden, the Netherlands and Denmark uniformly sided with transitional regimes like Greece and Turkey in opposition to binding guarantees. The historical record of negotiating tactics and domestic deliberation offers further support. The general claim that governments bind themselves to
Explaining the Emergence of Human Rights Regimes
file:///M|/WEB/cfia/cfiapubs/pdfs/moa02.html (1 of 35) [11/30/2000 11:56:36 AM]
The 50 th anniversary of the United Nations’ Universal Declaration on Human Rights marks an appropriate moment to reconsider the reasons why governments construct formally binding international regimes to adjudicate and enforce human rights. 1 Such regimes differ from most other forms of
international cooperation—and from purely rhetorical human rights declarations like the Universal Declaration itself—in that their primary purpose is to hold governments accountable before international institutions for their purely domestic activities. Such regimes do little to structure transactions among different governments. While some formally empower governments to challenge one another, this almost never occurs. It is a commonplace of international legal scholarship that the distinctiveness of such regimes lies instead in the empowerment of individual citizens to bring suit to challenge the domestic activities of their own government . The independent courts and commissions attached to such regimes are often empowered to nullify domestic legislation—even if enacted through fully democratic procedures. In this regard, such regimes pose a fundamental challenge not just to the Westphalian ideal of state sovereignty that underlies both realist international relations theory and classical international law, but also, though this is far less often noted, to liberal notions of democratic legitimacy and self-determination. For this reason, their postwar emergence, beginning with the Universal Declaration, has been called the most “radical development in the whole history of international law.” 2
There is a real theoretical puzzle here: Why would any government, democratic or dictatorial, favor establishment of an independent international authority, the sole purpose of which is to constrain its domestic sovereignty in such an unprecedentedly invasive and overtly non-democratic manner? Nearly all scholars who seek to answer this question theoretically, and thereby to explain human rights regimes, advance either a realist or an ideational explanation—or some combination of both.
Those who argue in a broadly realist vein maintain that normative coherence is a function of the concentration of interstate power. Powerful states, some of which happen to be democratic, impose human rights values on weaker ones. Those who argue in a more ideational vein (variously identified as liberal idealists or liberal constructivists) maintain that human rights regimes are a reflection of altruistic ideals. Democratic governments, or transnationally active members of democratic civil societies, are the strongest supporters of human rights regimes. They then externalize their ideology, persuading and encouraging other governments to implement human rights norms. Many scholars espouse both positions at once, arguing that powerful democracies coerce and induce others to respect human rights norms for idealist reasons.
Neither explanation, I argue below, captures the primary motivation behind the construction of formal human rights regimes. Existing theoretical claims rest on a near-total absence of empirical analysis. Neither historians nor political scientists have gone beyond published secondary sources in seeking to
Explaining the Emergence of Human Rights Regimes
file:///M|/WEB/cfia/cfiapubs/pdfs/moa02.html (2 of 35) [11/30/2000 11:56:36 AM]
explain the motivations of governments to create and join such regimes. The explanations above are no more than speculation based on casual observation of such regimes. Yet even casual observation is enough to suggest that neither explanation is correct. Even the secondary source record makes clear that the primary proponents of binding international human rights commitments in postwar Europe (as well as other regions) were neither the most democratic nor the most powerful states. Indeed, strong democracies tend to ally with dictatorships in opposition to binding human rights protection —a tendency very seldom noted by scholars and for which realists and idealist have no explanation. The primary proponents of formal human rights protection are instead the governments of weak and newly established democracies.
This curious pattern is explicable, I argue in the second section of this essay, only if we adopt a different theoretical starting point—that of domestic self-interest rather than realist power politics or exceptional transnational idealism. It is an act of political delegation akin to the establishment of domestic courts and administrative agencies as understood using theories of delegation drawn from the sub-disciplines of American politics and comparative public policy.
From this perspective—we might term it an institutional liberal or “two-level” perspective—delegation is a tactic to insulate the policies favored by a current government against future domestic political uncertainty. It “locks in” democratic norms against future threats from non-democratic opponents by placing the definition, interpretation, and adjudication of fundamental human rights claims in the hands of an independent international authority. Any violation of human rights is thereby rendered a more salient and symbolic event at home and abroad, against which governments hope to marshal greater domestic and perhaps also international support. The cost of such an arrangement is, however, that a measure of power to nullify or reinterpret individual domestic laws is thereby placed in the hands of the international body likely to render decisions that seek to bring all governments under common principles, rather than accommodating specific national particularities, compromises, exceptions, or political circumstances. The strongest support for legally binding guarantees will come instead from weak democracies, for which the need to stabilize the democratic system outweighs limitations on sovereign control over individual legislation.
In the third section of the essay, I test the realist, ideational, and institutional liberal explanations using historical data drawn from a primary source-based investigation of the origins of what is widely accepted to be the most effective of enforceable international human rights regimes in the world today—and for some decades, the only effective one—the European Convention on Human Rights (ECHR) system under the auspices of the Council of Europe, based in Strasbourg, France. Over the last half century, commentators agree, the European Convention system has established “effective supranational adjudication” in Europe. 3 The European Court has rightly proclaimed the Convention “a constitutional
document of European public order.” 4 Systematic comparison of national positions and primary-source
evidence concerning negotiating tactics and domestic political decision-making strongly confirm the institutional liberal explanation.
The notion that states construct international institutions in order to reduce domestic political uncertainty, I conclude in the fourth and final section, can be usefully extended to other areas of world politics, including other human rights regimes, monetary policy coordination, and trade liberalization.
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I. Existing Theories of International Human Rights Cooperation
Unlike international regimes governing international trade, environmental externalities, and international security, human rights enforcement and adjudication regimes do not seek to regulate ongoing international transactions. Instead they constrain governments solely in interaction with their own citizens or residents. 5 Why should governments coordinate their domestic policies?
Existing scholarship seeking to explain why governments accept the constraints on domestic sovereignty imposed by formal international human rights regimes has therefore focused on either power or altruism. These two options define distinctive realist and ideational explanations of human rights regimes, which, despite being viewed historically as antitheses, tend to converge toward similar empirical predictions. These theories are discussed below; their predictions are summarized on the next page on Table One.
To offer a brief preview of our findings, we see that even at the social conferences, sovereignty issues continue to shape NGO-state relations. As expected, sovereignty debates do indeed center around economic and cultural referents, in the absence of much debate about traditional security issues at these conferences. NGOs at the UN conferences of the 1990s exhibit an expanded global role, possessing more potential for independent agency and dialogue with states than at any time before. However, NGOs’ agency is also shaped by the procedures and agenda that remain in the hands of states. We also find that money does not “change everything”; on issues of foreign aid discussed at the conferences, recipient states were not willing to have international agreements dictate the percentage of their budget dedicated to social programs. Few donor states were willing to bow to similar recommendations for the percentage of aid they should give for social needs.
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A. Interstate Power and Human Rights: “For countries at the top, this is predictable”
One distinctive set of theories of international cooperation focus on the distribution of interstate bargaining power. Let us call these “realist” theories. In this view, governments accept formal human rights enforcement regimes because they are compelled to do so by great powers, who externalize their ideology—a view shared by the theory of hegemonic stability and conventional realist bargaining theory. 6 The causal link between the concentration of power in a hegemon or a few great powers, on the
one hand, and international cooperation, on the other, runs through the willingness of one or a few great powers to coerce or induce recalcitrant states to accept, adjust to, and comply with international obligations. 7 The major constraint on cooperation is the cost of coercion or inducement; only hegemons
Explaining the Emergence of Human Rights Regimes
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or small (“k”) groups among great powers—or, at least, democratic great powers—have the concentrated power to do so. The greater the concentration of relative power capabilities, the greater the pressure on recalcitrant governments and the more likely a regime is to form and prosper.
Such arguments are often invoked to explain human rights regimes. E.H. Carr, Hans Morgenthau and other classical realists argue that governments employ such liberal ideology as justifications for geopolitical and economic interests. 8 Stephen Krasner has maintained that human rights regimes almost
invariably reflect the interests, power, and intervention of great powers. 9 Kenneth Waltz presents the
theoretical claim in a general form—powerful nations predictably seek to impose their (arbitrary) views on other nations—then applies it to the postwar U.S.:
Like some earlier great powers, we [the U.S.] can identify the presumed duty of the rich and powerful to help others with our own beliefs about what a better world would look like. England claimed to bear the white man’s burden; France had its mission civilisatrice ....For countries at the top, this is predictable behavior. 10
Such efforts are constrained by the willingness and ability of great powers to expend resources for this purpose. Even John Ruggie, a theorist who generally stresses institutional and ideational factors, predicts that human rights regimes are likely to be weaker than nuclear non-proliferation regimes, because the former are of less concern to the core superpower security interests. 11 Jack Donnelly writes of the
Inter-American Convention on Human Rights:
Much of the explanation [for] the Inter-American human rights regime...lies in power, particularly the dominant power of the United States....[It] is probably best understood in these terms. The United States, for whatever reasons, decided that a regional regime with relatively strong monitoring powers was desirable, then exercised its hegemonic power to ensure its creation and support its operation. 12
Others link acceptance of human rights norms to pressures by international financial organizations (the World Bank) or Western donors of development and military aid. 13
Realist theory is often invoked as an explanation for the emergence of the European, UN, and American human rights regimes in the immediate post-World War II period. It was the dawning of an “American century,” and the West was embroiled in a bipolar conflict with the Soviet Union. The U.S. and UK could be expected to use their power to promote human rights, either for reasons of pride or to provide ideological legitimacy for the Western unity against the Soviets.
B. Liberal Idealism: “The Inescapable Ideological Appeal of Human Rights”
Ideational explanations look to the altruistic pursuit of principled ideas. Governments accept binding international human rights norms, in this view, because they are swayed by their obvious ideological and normative appeal. “The seemingly inescapable ideological appeal of human rights in the postwar world,” writes Donnelly, who espouses a wide range of explanations for human rights regimes, “is an important element in the rise of international human rights regimes....True hegemony is often based on ideological
Explaining the Emergence of Human Rights Regimes
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‘power.’” 14
Whence the ideological appeal of human rights? Psychological, cultural, historical, and domestic political explanations have been proposed. Some look to moral psychology. Human rights ideals such as the right to life and freedom from torture are said to be intuitively attractive to human beings and are therefore recognized cross-culturally as valid. 15 Others look to cultural homogeneity. States “within the
same geographical region, sharing a common history and cultural tradition,” it is argued, are more likely to agree on and enforce common human rights provisions—a characteristic often said to distinguish the European and American regions, which share distinctive approaches to human rights “nurtured by a long tradition of common history, religion, culture, and human values,” as against the global UN regime. 16
Still others attribute the appeal of human rights to salient historical events, in this case the wave of moral revulsion that followed the experience of Nazi atrocities during World War II. The formation of the European Convention, it has been argued, was “a direct consequence of the Nuremberg Tribunal.” 17
A final ideational approach links support for international human rights protection to domestic democratization and commitment to the “rule of law.” 18 This viewpoint has deeper roots in liberal IR
theory, extending beyond human rights policy: Thomas Risse has termed this approach “liberal constructivism” and others term it “ideational liberalism.” 19 In this view, democratic governments seek
to extend their domestic values abroad; the more democratic they are, the more likely they are to do so. Regime theorists Charles and Clifford Kupchan conjecture that “states willing to submit to the rule of law and civil society are more likely to submit to their analogues internationally.”20 International legal
scholar Thomas Frank asserts that compliance with international law is a function of normative acceptance of international rules, which in turn reflects their universal form and consistency with domestic norms, as well as the legitimacy of the process that promulgated them. 21 Kathryn Sikkink links
what appears to be the particularly enthusiastic support of Scandinavian governments for European human rights enforcement to their domestic democratic and social democratic values. 22
What all such arguments share at the level of fundamental theory is a commitment to the transformative power of normative discourse and ideals. Ideational theorists insist that the source of international cooperation lies in the persuasive power of an underlying normative belief concerning the value of human rights. Conversely such theorists reject explicitly the possibility that governments might support human rights regimes for self-interested reasons, for example to respond to a pragmatic need for domestic institutional checks and balances or to prevent warfare by buttressing the “democratic peace.” 23 The most fundamental motive force behind human rights regimes is not rational adaptation,
but transnational socialization—the “logic of appropriateness.” 24
Ideational explanations lay particular emphasis on the mechanism of domestic and transnational public opinion and “principled” interest groups (non-governmental organizations or NGOs). 25 Human rights
activism emanates from long-established and domestically generous democracies—say the United States in the UN and the Scandinavians in Europe. Domestic publics and interest groups convince their governments to create regimes and press other states to commit to and comply with them, establish transnational networks, epistemic communities, and global discourses of human rights, which in turn mobilize domestic and transnational civil society and socialize foreign leaders. 26
Explaining the Emergence of Human Rights Regimes
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Like realism, ideational theory offers a prima facie plausible explanation for the timing of the emergence of human rights regimes in the immediate post-World War II period. To be sure, appeals to psychology or deep culture manifestly fail to do this; at most they help explain why the defense of human rights might be fertile ground for transnational mobilization and persuasion. Yet the post-war period did immediately follow a salient historical event—the Nazi horrors—and raised the specter of Stalinism, and it was a period in which strong democracies like the U.S. and UK emerged as global leaders. There was much idealistic rhetoric and some interest group and partisan mobilization, particularly connected with the promulgation of human rights declarations like the UN Universal Declaration.
C. The “New Orthodoxy”: A Curious Convergence of Realism and Idealism
The study of human rights makes unlikely bedfellows. While in principle the realist and ideational theories may seem quite different, in practice they tend to converge. In explaining human rights regimes, few realists utterly forsake idealism and few idealists utterly forsake realism. Instead, there has been a widespread acceptance of a uneasy synthesis of the two.
The realists cited above do not argue that human rights norms are simply propagandistic justifications for the pursuit of national security interests. 27 Instead, they concede that the underlying preferences of the
hegemon concerning human rights are independent of its power position: each great power seeks to extend idiosyncratic domestic views or to promote the form of government that is likely to encourage others to ally with it. Underlying state interests are defined domestically, but countries then pursue them by exploiting their relative material capabilities or international institutions. What makes such an argument realist, in this case, is that a different hegemon or great power might promote some values with equal effectiveness; what makes it ideational or liberal constructivist is that domestic societal values determine what values are chosen. 28
Similarly, few idealists actually believe that the use of force or domestic political calculation is irrelevant. Socialization (i.e. transnational education, imitation, and fundamental normative persuasion) is rarely treated as the sole (or even the primary) mechanism that induces governments to accept formal human rights guarantees. There are those, to be sure, who argue that commitments to fundamental human rights are spread by governments imitating one another—a pure “logic of adaptation.” 29 Yet most
idealists…
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